Corruption may undermine Khmer Rouge justice

On 17 February, a gaunt former school teacher walked into a packed courtroom in the Cambodian capital of Phnom Penh, flanked by lawyers and lit by the flashes of the international press corps.

Amid the procedural banalities of the ensuing hearing, an observer could be forgiven for mistaking the momentous nature of the event: more than 30 years after its overthrow by an invading Vietnamese army, a senior leader of the genocidal Khmer Rouge regime was sitting in the dock in a duly constituted court of law.

Kang Kek Ieu, better known by his revolutionary alias Duch, was the self-confessed chief of Phnom Penh's notorious Tuol Sleng prison, which oversaw the torture and eventual execution of as many as 16,000 'enemies' of the revolution. The court has also indicted a further four senior Khmer Rouge, who are set to face trial for the deaths of the estimated 1,700,000 people who perished under the regime during 1975–79.

But the Extraordinary Chambers in the Courts of Cambodia (ECCC) — a hybrid court combining local and international staff — has set itself a mandate that goes far beyond the goal of rendering impartial verdicts.

According to its website, the ECCC intends that the trials will help 'ease the burden that weighs on the survivors', as well as 'strengthen our rule of law and set an example to people who disobey the law in Cambodia and to cruel regimes worldwide'.

But both these aims of judicial reform and historical catharsis vastly overrate the demonstrative power of international justice in the current Cambodian context.

Abstract norms of international justice have virtually no precedent in Cambodia, where in the 1970s a nascent modern judicial system was smothered in the cradle by the Khmer Rouge. Nominally independent, the judiciary today is in practice wholly subservient to the ruling Cambodian People's Party.

This reflects the nature of the one-party state and the piecemeal democratisation that has taken place since the UN-brokered elections of 1993. Despite the halting progress of the ECCC, politically-motivated shootings of journalists and trade union leaders continue to go unpunished.

Whether even a flawlessly impartial ECCC trial could reform such a system of engrained patronage is an open question. Indeed the opposite seems to be the case. Yash Gai, the former United Nations human rights envoy to Cambodia, wrote in The Standard on 8 February that 'the weakness and corruption within the national legal system have infected the ECCC, instead of the ECCC influencing the conduct of local judges and prosecutors'.

International observers now recognise that corruption threatens to jeopardise the entire court process. Last week, the New York-based Open Society Justice Initiative released a statement slamming political interference and corrupt employment practices in the court, calling on officials to take 'aggressive action to respond to the allegations of corruption'.

As well as being among the most corrupt in the world, Cambodia's judiciary is also among the worst-funded. According to a 2008 report by the Centre for Social Development, a local legal watchdog, the court system received only 0.28 per cent of the national budget in 2008 — a total of just US$3.3 million. The ECCC, on the other hand, has a projected budget of $135.4 million for the trial of just five suspects.

As the report rightly noted, the disparity in funding raised the question of whether the ECCC is 'a relevant model for local courts, as insufficient funding surely must impact the ability of national courts to render proper justice'.

Whether the court can deliver 'healing' is a more subjective question. In many cases, the open wounds left by the Khmer Rouge era have yet to be staunched, with thousands of known murderers living in the same villages as the relatives of their victims.

A recent survey conducted by researchers at the University of California, Berkeley, found that the majority of Cambodians still harbour feelings of hatred towards these former Khmer Rouge members. Nearly half of the 1000 respondents said they were uncomfortable living in the same community with former Khmer Rouge members. More than 70 per cent said they wanted to see former cadres suffer in some way.

At the same time, however, 85 per cent said they had no or little knowledge of the ECCC, and a scant 5 per cent could name the five accused leaders.

Prince Sisowath Thomico, an outspoken member of Cambodia's royal family who lost his parents and eldest daughter to the Khmer Rouge, said he had no faith the process would provide any more than cursory justice for their deaths. 'I don't believe ... that the tribunal will give me justice,' he told me in November. 'And millions of Cambodians will have the same answer.'

To be sure, bringing war-criminals to justice is an important aim for the international community. But in Cambodia, a post-conflict society that as yet lacks the political and economic underpinnings necessary to support Enlightenment notions of justice, such institutions may simply slump into the contours of existing corrupt practice. Or, perhaps worse, they may remain incomprehensible to those in whose name they have been set up.

The experience of the ECCC in Cambodia sounds a warning about saddling international war-crimes tribunals with an unbearable weight of expectation.

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